A bold move but constitutional questions remain

Source: Hindustan Times dated 06.08.2019

The government has resorted to perhaps one of the boldest steps, but from a constitutional perspective, some looming questions remain, writes Mohan Parasaran (Senior advocate, and former Solicitor General of India).

The Government of India (GoI) has resorted to perhaps one of the boldest steps — since the coming into force of the Constitution of India — with President Ram Nath Kovind promulgating the Constitution (Application to Jammu and Kashmir) Order, 2019, which states that provisions of the Indian Constitution are applicable in the state. This is what the Bharatiya Janata Party (BJP) had promised to the people, and the move is in consonance with the idea of “fraternity” envisaged in the Preamble, and has been done to strengthen the “unity and integrity of the Nation”.

But from a constitutional perspective, there are some looming questions due to the decision taken by the GoI. The state of Jammu and Kashmir is now under the President’s Rule, and there’s no elected government or a legislative assembly. Clauses (1)(d), (2) & (3) of Article 370 read as follows:

“(1)(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of subclause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he

may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

Even though the Constituent Assembly no longer exists, the question that may arise is whether there is a need to consult an elected body in the state on such important issues, or was the President’s decision in accordance with the other provisions of Article 370 inasmuch as he had effective consultation with the governor, who, in effect, is the government when the state is placed under President’s Rule.

Another issue is that the amendment to Article 367(4), in its application to the State of Jammu and Kashmir, is effected by way of the present Order. The issue here is whether such an amendment could be made by way of a Presidential Order. An amendment to the Constitution may only be done by recourse to Article 368 by introducing a Bill, in that regard, in the Parliament, and being passed in both the houses by a majority of 2/3rd of its members present, and voting, and thereafter, the Bill receiving the assent of the President.

As the amendment to Articles 367 and 370 are the fulcrum of the Presidential Order, questions may arise as to whether such amendments can be made in a circuitous manner without resorting to Article 368, and whether such an Order would suffice in light of the spirit behind Article 370. But the GoI’s view appears to be that no such constitutional amendment is required in light of the provisions of Article 370(1)(d).

This appears to be the moot point.

From a personal point of view, the GoI needs to be congratulated for uniting the country, as there was always a feeling that Jammu and Kashmir was truly not part of India, but part of the nation for historical purposes.

This was exploited by politicians, and led to communal forces gaining control, post-Independence, and terrorism taking a lead role.

Keeping aside the legal issues, the GoI’s intention has to be appreciated as one which is to bolster the sovereignty and integrity of the country. But the constitutional issues, from the perspective of a constitutional lawyer, are rather interesting, and will give rise to interesting debates.